Z. Spada v. PA DOC, A.G. of PA, in their individual and official capacities ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zachary Spada, :
:
Petitioner :
:
v. : No. 93 M.D. 2021
: Submitted: September 24, 2021
Pennsylvania Department of :
Corrections, Attorney General of :
Pennsylvania, in their individual :
and official capacities, :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 22, 2021
Before the Court are the Preliminary Objections (POs) and Suggestion
of Mootness filed by the Pennsylvania Department of Corrections (DOC), and the
Attorney General of Pennsylvania, in their individual and official capacities
(collectively, Respondents), to the Complaint (PFR)1 filed by Zachary Spada
(Inmate) in our original jurisdiction. We dismiss Inmate’s PFR as moot.
1
Although Inmate styled his filing as a Complaint, he should have filed a petition for
review because that is the pleading that is used to commence an action against the Commonwealth
and its officers under Chapter 15 of the Pennsylvania Rules of Appellate Procedure. See, e.g.,
(Footnote continued on next page…)
On March 22, 2021, Inmate filed the instant PFR alleging that
Respondents have violated his rights as guaranteed by the Eighth Amendment to the
United States Constitution2 and article I, section 13 of the Pennsylvania Constitution3
by failing to comply with Section 5901(a)(1) of the Prisons and Parole Code (Code).4
MFW Wine Co., LLC v. Pennsylvania Liquor Control Board, 231 A.3d 50, 52 n.1 (Pa. Cmwlth.
2020) (single-judge opinion by Brobson, J.) (“Consistent with the applicable rules of appellate
procedure, the Court treats the Amended Complaint as a petition for review directed to this Court’s
original jurisdiction. See Pa. R.A.P. 1501(a)(3), 1502, 1503.”). Consistent with the foregoing, by
April 12, 2021 order, we directed that the Complaint be docketed as a petition for review invoking
this Court’s original jurisdiction, and we refer to Inmate’s filing in this memorandum opinion as
the PFR, and to the named defendants in the Complaint as Respondents.
2
U.S. Const. amend. VIII. The Eighth Amendment states: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
3
Pa. Const. art. I, §13. Article I, section 13 states: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel punishments inflicted.” As this Court has stated:
The phrase “deliberate indifference” is the legal standard by
which courts adjudicate cases concerning alleged unconstitutional
conditions of confinement brought under the Eighth Amendment to
the United States Constitution. The guarantee against cruel and
unusual punishment contained in the Pennsylvania Constitution
provides no greater protections than that afforded under the Eighth
Amendment to the United States Constitution.
In order to establish that DOC was deliberately indifferent to
[a petitioner’s] health and safety, [the petitioner] must, at a
minimum, allege that DOC knew of and disregarded an excessive
risk to [his or her] health or safety.
Jochen v. Horn, 727 A.2d 645, 649 (Pa. Cmwlth. 1999) (citations omitted).
4
61 Pa. C.S. §5901(a)(1). Section 5901(a)(1) and(2) states, in relevant part:
(a) Physical exercise.--
(1) A chief administrator who may or shall have in charge any
inmate, whether the inmate has been tried or not, shall provide the
(Footnote continued on next page…)
2
Specifically, Inmate alleges that on March 13, 2020, after the Governor issued the
Proclamation of Disaster Emergency (Disaster Proclamation)5 regarding the
COVID-19 pandemic, DOC failed to uphold the mandate of Code Section
5901(a)(1) “by failing to provide daily exercise in the open at [the State Correctional
Institution at ]Houtzdale [(SCI-Houtzdale)], opting instead for, often less than two
hours, of indoor recreation even though the weather may not have been inclement.”
PFR ¶8. Inmate asserts that “[t]he legislature intended for [Code] Section 5901 to
inmate with at least two hours of daily physical exercise in the open,
weather permitting, and, upon such days on which the weather is
inclement, with two hours of daily physical exercise inside of the
correctional institution.
(2) The physical exercise must be safe and practical, and the judges
of several courts are to be the judges thereof.
61 Pa. C.S. §5901(a)(1), (2).
5
As this Court has observed:
On March 6, 2020, Governor Wolf issued a [Disaster
Proclamation] pursuant to Section 7301(c) of the Emergency
Management Services Code[,] 35 Pa. C.S. §7301(c), regarding the
novel coronavirus (COVID-19) pandemic. Thereafter, the
Governor implemented numerous orders designed to mitigate and
stop the spread of COVID-19, which orders, inter alia, closed
restaurants and bars in Pennsylvania for in-person dining, closed
non-essential businesses, limited the size of in-person gatherings
within the Commonwealth, and directed citizens to stay at home.
Governor Wolf also issued multiple periodic amendments to the
Disaster Proclamation, each of which renewed the Disaster
Proclamation for an additional 90 days. [The Governor issued
amendments renewing the Disaster Proclamation on June 3, 2020,
August 31, 2020, November 24, 2020, February 19, 2021, and May
20, 2021.]
Corman v. Acting Secretary of Pennsylvania Department of Health, ___ A.3d ___, ___ (Pa.
Cmwlth., No. 294 M.D. 2021, filed November 10, 2021), slip op. at 4-5 (footnotes omitted).
3
be a minimum standard, such as [during] the current state of emergency, since under
normal circumstances, . . . DOC offers at least 6 hours of out of cell exercise per day
. . . .” Id. ¶9. Inmate concedes that “[o]bviously, safety is the key here since the
COVID pandemic is rampant,” and that he “is sympathetic to that fact,” but that
“there must be some alternative that would enable [] DOC to provide safe and
practical exercise.” Id. ¶11. Nevertheless, Inmate contends that, based on the
inclusion of Code Section 5901(a)(2), “[t]he legislature apparently contemplated
[that] this statute [would] be contested because it clearly gives the courts discretion
to interpret it by means of judicial review.” Id. ¶12. In sum, Inmate claims that
“DOC’s failure to provide exercise opportunities totaling at least two hours per day
in the open air” violates Code Section 5901, his rights as guaranteed by the Eighth
Amendment and article I, section 13, and the separation of powers doctrine. Id.
¶¶13, 18-20. Accordingly, Inmate asks this Court for “[a]n evidentiary hearing
and/or jury trial on the merits of this action”; his “costs and damages”; “[a]
[p]reliminary and [p]ermanent injunction order[ing] DOC to make provisions to
comply with the law”; “[d]eclaratory [j]udgment”; and “[a]ny additional relief
deemed just, equitable and proper.” Id. ¶¶21-25. On May 5, 2021, Respondents
filed POs in the nature of a demurrer, seeking dismissal of the PFR because it fails
to state claims upon which the requested relief may be granted. POs ¶5.
On September 22, 2021, Respondents filed a Suggestion of Mootness,6
alleging, in relevant part:
5. [DOC] has recently eased some of the restrictions
imposed due to the COVID-19 virus, including increasing
6
See Pa. R.A.P. 1972(a)(4) (“[S]ubject to Pa. R.A.P. 123, any party may move . . . [t]o
dismiss for mootness.”); Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992
A.2d 121 (Pa. 2010) (“Pa. R.A.P. 1972(a)(4) permits a party to move for dismissal for mootness
during litigation.”).
4
the size of the cohorts who go out for outdoor exercise so
that more inmates can participate.
6. [Inmate] is housed in BB Unit 1032 cell. This is on
the bottom tier. The exercise schedule rotates daily so the
exercise periods are not set in stone and result in more
recreation hours some days. [Inmate’s] current tier will
have at least 5.25 hours of indoor recreation and 1.5 hours
of outdoor recreation every day with the institution’s
current authorized cohort sizing. On some days, his
recreation time may total nine hours.
7. Based on the above reinstatement of outdoor
exercise, [Inmate’s] claim is now moot.
Respondents’ Suggestion of Mootness ¶¶5-7.7
On October 4, 2021, Inmate filed a Response to Respondents’
Suggestion of Mootness, alleging, in pertinent part:
3. However, the claims for other relief are not moot
because the denial of recreation, in accordance with 61
Pa. C.S. §5901, occurred for a period of March 13, 2020,
through about May 30, 2020, and then again from
November 15, 2020, through about June 1, 2021. In some
instances, inmates were not afforded any recreation
despite having no cases of COVID on certain housing
units.
4. Accommodations should have been made for
recreation, but the Administrator of SCI-Houtzdale used
the COVID-19 [p]andemic as justification to lock inmates
in their cells for periods greater than [that] allowed by law
in an arbitrary and capricious manner not rationally related
to furthering legitimate penological interests.
Petitioner’s Response to Respondents’ Suggestion of Mootness ¶¶3-4.
As this Court has explained:
7
By October 8, 2021 order, we directed that Respondents’ Suggestion of Mootness and
Inmate’s Response to Respondents’ Suggestion of Mootness be considered along with the merits
of this matter.
5
Under the mootness doctrine, an actual case or
controversy must exist at all stages of review, not just
when the [PFR] is filed. The existence of a case or
controversy requires “a real and not a hypothetical legal
controversy and one that affects another in a concrete
manner so as to provide a factual predicate for reasoned
adjudication. . . .”
Finn v. Rendell, 990 A.2d 100, 104-05 (Pa. Cmwlth. 2010) (citations omitted).
“Absent an ‘actual controversy,’ any opinion rendered would be advisory, and we
do not issue advisory opinions.” Buehl v. Beard, 54 A.3d 412, 419 (Pa. Cmwlth.
2012), aff’d, 91 A.3d 100 (Pa. 2014).
In DeHart v. Horn, 694 A.2d 16, 17 (Pa. Cmwlth. 1997), inmates at
SCI-Greene filed an action in mandamus seeking to compel DOC and the SCI’s
superintendent to provide them with at least two hours of daily, outdoor, physical
exercise as mandated by the prior version of Code Section 5901. In their petition
for review, the inmates alleged that the SCI had an outdoor exercise yard that is
surrounded by a security fence, but the yard was closed Monday through Friday for
about a month for the construction of another fence bisecting the yard. Id. Although
the inmates could use the yard on Saturdays and Sundays, they could not exercise in
the yard on weekdays during the period of construction. Id. In sustaining the
respondents’ preliminary objections and dismissing the petition for review as moot,
this Court stated:
The [p]etitioners assert that the [r]espondents
deprived them of all outdoor exercise while the exercise
yard was closed during construction of the fence. In
response thereto, the [r]espondents filed a preliminary
objection on the basis that the issue is now moot since the
[p]etitioners are not being currently subjected to the
allegedly adverse prison condition of which they
complain. We agree. Upon completion of the fence
construction, the exercise yard was reopened and a new
schedule was implemented under which the inmates
6
received outdoor daily exercise in the morning from 8:15
to 10:15 or in the afternoon from 1:00 to 3:00. The
[p]etitioners, by virtue of their own allegations, concede
that, with the reopening of the exercise yard, the issue of
whether the closure of the exercise yard, during the
construction of the fence, constituted a deprivation of their
entitlement to receive two hours of daily, outdoor,
physical exercise is moot.
Id. at 18 (footnotes omitted).
Likewise, in the instant case, Inmate’s Response to Respondents’
Suggestion of Mootness concedes that although some inmates were denied
recreation for a period of months during the height of the COVID-19 pandemic, this
purported statutory and constitutional deprivation ended on or “about June 1, 2021.”
Petitioner’s Response to Respondents’ Suggestion of Mootness ¶3. Based upon
Respondents’ admitted reinstatement of “safe and practical” outdoor exercise as
required by Code Section 5901, the claims raised and the relief requested in the PFR
are now moot.8
Accordingly, Inmate’s PFR is dismissed as moot.
MICHAEL H. WOJCIK, Judge
8
See also DeHart, 694 A.2d at 18 n.6 (“The [p]etitioners fail to argue that the aforesaid
issue falls under one of the general exceptions to the mootness doctrine.”); Rauso v. Sutton (E.D.
Pa., No. 99-cv-2817, filed March 30, 2004), slip op. at 10 (“[T]he [prior version of Code Section
5901] contains no express enforcement provision permitting private suits for money damages, nor
has it been applied that way. DeHart[, 694 A.2d at 18] (finding inmates’ challenge rendered moot
and no other remedy allowable under law after exercise yard that had been closed for construction
was re-opened)[.]”).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zachary Spada, :
:
Petitioner :
:
v. : No. 93 M.D. 2021
:
Pennsylvania Department of :
Corrections, Attorney General of :
Pennsylvania, in their individual :
and official capacities, :
:
Respondents :
ORDER
AND NOW, this 22nd day of December, 2021, Petitioner’s Complaint
is DISMISSED as moot.
__________________________________
MICHAEL H. WOJCIK, Judge